Vt. man again found not competent to stand trial in wife’s murder

Published: 11/17/2019 10:05:58 PM
Modified: 11/17/2019 10:05:56 PM

BURLINGTON — A doctor has found Aita Gurung, the man accused of murdering his wife with a meat cleaver in Burlington in 2017, not competent to stand trial.

Dr. Jonathan Weker determined that Gurung is not competent to stand trial, meaning that he does not have the mental capability to currently understand the murder and attempted murder charges against him.

The state Attorney General’s Office will contest that finding.

Attorney General TJ Donovan refiled charges against Gurung in September after State’s Attorney Sarah George dismissed the charges against him after she determined that the state would be unable to disprove Gurung’s planned insanity defense.

Weker performed the competency examination on Gurung Oct. 3, and his report is under seal. But the docket sheet in the case — obtained by VTDigger as part of a public records request — states that the AG’s office “does not stipulate to the report’s findings of non-competence.”

Gurung had been found competent to stand trial in late December 2017. But as competency is tied to the current mental state of the defendant, whether an individual is competent to stand trial can change over time.

On the other hand, the insanity defense refers only to whether or not the defendant was insane at the time of the alleged crime.

Charity Clarke, Donovan’s spokesperson, said in a statement that the AG’s office remained committed to prosecuting the case.

“Mr. Gurung has been found to be competent to stand trial since the time this alleged crime occurred,” she said. “This is a new opinion and we will challenge this opinion in court. Competency is different than sanity.”

The finding of non-competency indicates that Gurung’s mental health may have deteriorated since he was moved to prison following Donovan’s decision to re-file the charges against him.

Gurung had gone from being hospitalized in the state’s mental health treatment system to prison after the Department of Mental Health said in a hearing that it would not be willing to take Gurung back into its custody due to concerns about federal funding, the security of their Middlesex facility and other issues.

A competency hearing is scheduled for Dec. 20, when the state will have the burden to persuade the court by a preponderance of the evidence that Gurung is competent to stand trial.

Motion to Dismiss

Gurung’s attorney, Sandra Lee, has filed a motion to dismiss the charges against Gurung.

Lee argues that the AG’s office does not have the jurisdiction to refile the same charges that the State’s Attorney dismissed against Gurung.

The motion also contests that Donovan’s decision to bring the charges back violates Gurung’s rights by violating double jeopardy, collateral estoppel and his right to a speedy trial. The motion argues that the state’s attorney and attorney general are coequal.

“The State’s Attorney is not merely the prosecuting officer in the county in which she is elected, but she is also an officer of the state in general matters of criminal law enforcement,” Lee wrote.

The Attorney General’s Office filed a response to the motion to dismiss that argues that the AG’s office is not bound by the George’s decision.

Assistant AG Ultan Doyle cites a case in which the Supreme Court ruled that the Attorney General had the authority to prosecute in a case where the state’s attorney in Windsor County declined to bring a DUI charge.

Since Gurung’s case was dismissed without prejudice, the AG has the ability to refile, Doyle argues.

Lee argues that the precedent in that case relates only to cases where the state’s attorney declines to initiate criminal prosecution. Without a change in circumstances, the AG does not have the power to override the state’s attorney’s decision to dismiss the charges, she argues.

Lee argues that the second prosecution violates Gurung’s constitutional right to not be tried twice for the same crime and violates his right for collateral estoppel, which bars the AG from relitigating factual issues that have already been decided in the defendant’s favor.

Doyle argues that the only way to arrive at a not guilty by reason of insanity is at trial, and since no trial occurred in this case, George’s decision to dismiss the charges is not the equivalent of a not guilty by reason of insanity finding.

This means the refiling of the charges does not violate Gurung’s constitutional rights, Doyle argues.

The length and reason for the delay to get to trial violate Gurung’s right to a speedy trial, Lee argues. Doyle contests this assertion.

“Given the nature of the charges, the need for lengthy competency evaluations, the lengthy discovery and litigation, and the requested continuances, none of the time that elapsed during the first prosecution is chargeable to the Attorney General’s Office,” Doyle wrote.

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